Dearlove v Wavar Pty Ltd[2024] QCATA 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   At one time the appellant was the tenant of a rural residential property near Esk, managed for the owners by the respondent.^[1]  On 6 September 2022 she filed in the Tribunal an application for a residential tenancy dispute claiming a total of $19,630.50 as compensation or reduced rent, the cost of work she had had done fixing the fencing and paddocks, and the cost of a builder’s report.  It appears that a few days later she moved out of the premises.^[2]  The application referred, in Part E, to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) s 94, s 185, s 419, s 420 and s 429. 
2. [2]
   The matter was heard on 20 September 2022 by a Member^[3] who delivered a decision and written reasons dated 2 November 2022, in which the application was dismissed.  On 28 November 2022 the appellant filed in the Tribunal an Application for Leave to Appeal or Appeal from the decision.  The grounds of appeal set out in an attachment to the Application are discursive and essentially reflect a complaint that the appellant was not afforded a fair hearing.  I shall discuss them further below. 
3. [3]
   The proceeding at first instance was a minor civil dispute, so the appellant requires leave to appeal to the Appeal Tribunal, whatever the ground.^[4]  Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the applicant,^[5] although it may also be granted when the application raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.^[6]  The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one judicial determination of the dispute. 
4. [4]
   The conventional directions were given on 23 December 2022, including that if any party seeks leave to rely on any material not before the hearing at first instance, the party had to file an application for leave to rely on additional evidence, together with a copy of the original evidence and a submission in support of leave, with the question of leave to be decided on the hearing of the substantive application.  No such application has been filed by either party. 

First instance reasons for decision

5. [5]
   The Member produced written reasons for the decision which ran to nine pages, unusually thorough for a first instance decision in a tenancy matter.  The Member set out an introductory outline of the matter, and then a chronology, then dealt with the credibility of the appellant as a witness, followed by the factual material relating to the issues of fencing, paddocks and stairs before referring to the Act s 94, s 185 and s 419 with some discussion of their application.  There was then a discussion of the issues of two broken windows, mould, stumps, the hot water system, the driveway and the front gate, before setting out briefly the conclusion which was based on the findings included in the discussion of the issues. 
6. [6]
   The Member was critical of the reliability of the appellant as a witness, giving reasons for that assessment.  Two specific matters were referred to which suggested unreliability, and he noted that she was not able to explain changes in the amount claimed, or to justify the quantification of the rent reduction sought at 50%, or her claim that she wanted to stay with her vacating voluntarily not long before the hearing.  These matters provide logical support for the impression formed by the Member. 
7. [7]
   The claim for money spent on fencing was rejected on the basis that this was money spent voluntarily by the appellant to make the property suitable for her own purposes, and the respondent had no obligation to pay for this.  There was a complaint about damage to fencing caused by flooding, rejected on the basis that the damage was to the improvements made by the appellant, which the respondent did not have to maintain.  The same reasoning applied to money spent on paddocks.  As to the stairs, there were defects in them when she moved in and repairs had been undertaken.  There was no right to damages for breach of the agreement because any breach was outside the six month period in the Act s 419(3), and none of the paragraphs of s 94(1) of the Act had been satisfied. 
8. [8]
   As to the two broken windows,^[7] one was noted in the entry condition report, so any claim was outside the six month period.  As to the second, the notice to remedy breach given on the 11 August 2022 was invalid because it allowed only six days, contrary to the Act s 328(1), and probably because it did not include sufficient particulars as required by the Act s 325(2)(b).  In any case, no compensable damage had been proved.  As to mould, the Member did not accept that there was any ground to blame any mould present on the breach of any term in the agreement.^[8]  There had been mould present when the appellant moved in, according to her, and later the carpet affected was replaced by lino.  Although the appellant claimed that there was mould on the lino, this was not supported by a report the appellant had obtained, and the Member noted that there was no corroboration of the continuing presence of mould.  He also said that mould had been common in south east Queensland as a result of unusually wet weather over the last couple of years. 
9. [9]
   The Member was not impressed by a report obtained by the appellant from a builder, describing it as a one page advocacy report rather than an expert report, and said he gave it very little weight.  The report did not support her evidence that the roof leaked in wet weather.^[9]  As to the complaint about the stumps, this was dealt with on the basis that it was not currently a safety issue, although it had the potential to become one.  The Member said that the respondent had extensively braced the stumps.^[10]  That there was a leak in the hot water system which had been repaired after she complained about it was not disputed.^[11]  This was said to have been known of outside the six month limit, and in any case no damages had been proved. 
10. [10]
    The appellant complained about the gravel driveway providing access by vehicles to the house, which flooded in wet weather, although the Member found it had not become impassable as a result.  At one point the appellant had arranged for a load of sand to be dumped on the driveway, and in the process of doing this the truck did some damage to the driveway, and other parts of the property.  The Member proceeded on the basis that the real damage had been caused by the appellant’s contractor, and the respondent was not responsible to repair that damage, so that no compensable loss had been shown.  He also took the attitude that although some water lay in the low lying part of the driveway, it was still usable.  Finally the complaint about the front gate having been washed away in the floods was rejected on the basis that no actual loss to the appellant had been shown, so no reduction in rent on this basis was justified. 

Grounds of appeal

11. [11]
    The attachment to the application for leave to appeal set out various matters in a discursive way, and it is difficult to identify specific grounds of appeal.  Statements that the decision was “extremely unfair” and the like are too general to amount to grounds of appeal.  The complaints I can identify are:

    1. Apparent bias.
    2. The respondent had provided a falsified record.
    3. A report as to the state of the premises before the appellant moved in had not been addressed by the Member, and had been overlooked. 
    4. There was insufficient regard to the appellant’s expert report.
    5. The Member had not taken into account that the appellant had been a good tenant, had always been paid up in her rent, and had kept the property in good condition. 
    6. The property should never have been rented out in the first place because of its condition. 
12. [12]
    In submissions in writing in support of the application and appeal, the appellant said she was “not now claiming this amount” because she took a large portion of her fence when her notice to leave had been accepted during the hearing.  In context this is a reference to the amount claimed for her repairs to the fencing and the paddocks.  The practical effect of this submission would appear to be that the claim for reimbursement of these expenses is not longer pursued.  She sought to add to the claim however the removal costs of $1,692.23 when she moved out, an amount of $110 she paid to a lawyer relating to the hearing, and the filing fee on the appeal.  The cost of moving is clearly not recoverable, as she moved out voluntarily, any legal costs in connection with the first hearing would not be recoverable,^[12] and whether she is entitled to the filing fee on the application for leave to appeal depends on the outcome of the application and appeal.  In the submissions in writing some other matters were raised.  I do not propose to deal with them, as they were obviously irrelevant. 

Consideration   -   Apparent Bias

13. [13]
    The appellant having raised this issue, it is appropriate to deal with it first.^[13]  In submissions in support of the appeal the appellant said the decision was crudely written and comes across as possibly biased, and that the Member was rude and overly abrupt during the hearing.  She complained that her plea fell on deaf ears as he dismissed her case entirely.  In the grounds of appeal, she said that most of the hearing was taken up by unnecessary rebuttals from the Member, which I assume meant he was questioning her in an unsympathetic manner about her case.  The respondent in submissions said that most of the hearing was spent with the Member “asking and discussing all of the issues … with” the appellant directly. 
14. [14]
    I am not in a position to assess how the hearing was conducted, however, as unfortunately no recording or transcript of this matter is available.  I have been told that this was due to a technical fault at the courthouse, although of course that is the sort of thing that is not supposed to happen.  The appellant’s criticism of the reasons appears to me to be based largely on the fact that her claim failed, and that the Member did not accept her reliability.  That in itself does not demonstrate bias, although it may be consistent with it.  I do not see in the reasons any significant indication of apparent bias.  The closest part is where the expert report the appellant produced was criticised by the Member, largely on the basis that it read as an exercise in advocacy for her rather than an independent expert report.  There was some force in that criticism, but the real problems the appellant faced were not in showing that there were things wrong with the premises, but in mounting a valid claim in respect of them. 
15. [15]
    There are things about the opinion of that expert, however, which strike me as odd.  He did not address the possibility of draining the area under the house better.  It appears from the photographs that the land on which the house is constructed slopes gently to the front, and even if the ground under the house has been dug away to some extent to improve headroom, it should still be possible to run a spoon drain from one corner to a point downhill from the ground under the house.^[14]  Most of the area under the house seems to be just bare earth, so drains could easily be cut in it to carry rain water that came in to one corner, and then out.^[15]  Apart from this, it does not appear from the photos that the ground level is lower under the house than outside.^[16]
16. [16]
    The tests for apparent bias are those laid down by the High Court in Ebner,^[17] and applied by the Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184.  Acknowledging that it is difficult to assess this argument because of the absence of the recording of the hearing, on the basis of the material presented, I am not persuaded that the appellant has made out a case to set aside the decision on the ground of apparent bias. 

Consideration  -  Falsified Record

17. [17]
    This is a reference to an inspection report which was put in evidence by the respondent, dated 7 June 2022,^[18] which contains two inconsistent references to the carpets.  In the early part of the report there is reference to the carpets needing to be replaced, and later in the report, there is a statement that carpets in two rooms have been replaced by wood pattern lino.  At first sight this is a little curious, but the obvious explanation is that the comments relate to different dates.  That the carpet with signs of mould was replaced with the lino while the appellant was in the property was clearly understood by the Member, as shown by his reasons.  There is no reason to think that this document had been falsified in any relevant way,^[19] or that this affected the Member’s decision, and this ground is not made out.

Consideration  -  Pre-purchase Report

18. [18]
    It is true that the Member did not mention an inspection report obtained for the new owner prior to the tenancy, which identified a number of things wrong with the premises.^[20]  However, showing that there were things wrong at that time does not assist the appellant, largely for technical reasons explained below in relation to the limits on the jurisdiction of the Tribunal.  The Act does not appear to contain any specific remedy for a failure to comply with s 185(2), which covers the obligations of a lessor as to the state of the premises at the commencement of the tenancy.^[21]  It does contain s 191 and s 221.  The former provides for an order of the Tribunal that a lessor remedy a failure to comply with the Act s 185(3),^[22] but only in certain circumstances; it does not cover a failure to comply with the Act s 182(2), so s 191 would not apply to any pre-existing defect in the premises. 
19. [19]
    In any case, s 191 leads to a repair order, not to an order for a payment of money.^[23] Section 221 provides for an application relating to repairs, leading to an order that repairs be carried out: s 221A.  If a repair order is made under s 221A, the order can also provide for a reduced rent until the repairs are carried out, and compensation for loss of amenity in the past, because of the need for repair.  The relevant part of the Act in which s 221 appears is concerned with damage and repairs,^[24] and in context appears to relate only to things that happen during the tenancy.^[25]  There is nothing to indicate that it can be used for pre-existing deficiencies in the property. 
20. [20]
    It follows that it does not assist the appellant’s case to show that deficiencies in the premises were present prior to the time she moved into them under the tenancy agreement.  The Act appears to proceed on the basis that, as long as the premises are fit to live in, and in good repair,^[26] it is a matter for a prospective tenant to decide whether to accept the premises as they are, or not; there is no mechanism by which a tenant can enter into a tenancy agreement to pay a particular rent for premises, and then apply to the Tribunal, in effect to set a lower rent.  In the circumstances, I cannot see how this report assists the case of the appellant. 

Consideration  -  Other grounds

21. [21]
    I have already said something about the appellant’s expert report.  The next ground alleged that the Member had failed to take into account that she had been a good tenant of the property.  That in itself is not a relevant issue, nor is it relevant to any of the actual issues in the matter.  It could be seen as relevant to the issue of her reliability, but there can be all sorts of reasons why a person might be regarded as an unreliable witness, without the person necessarily being a bad person.  The reasons of the Member in relation to the issue of credibility are plausible, and he had the advantage of seeing and hearing the witness.  This ground is not made out. 
22. [22]
    The remaining ground was that the premises were not fit to be rented out, in effect that there was a failure to comply with the requirements of the Act s 185(2).  This requires some consideration of the ways in which a money claim can be made under the Act against a lessor in respect of defective premises.  

Consideration  -  s 94

23. [23]
    The major basis of the claim for relief advanced by the appellant at first instance was that there were various defects in the property from the beginning of the tenancy, and that because of them she was entitled to a reduction in rent.  The difficulty with that claim is that there is no basis in the Act to accommodate such a claim.  The original application referred to the Act s 94, but that provision is concerned with changes in the condition of the premises after the commencement of the tenancy.^[27]  The material showing that certain problems with the premises were present at the beginning of the tenancy shows that those problems cannot support an application under s 94.  Some of the defects present then were rectified during the tenancy. 
24. [24]
    Given the history of the tenancy, the claim under s 94 could have been based only on the premises having become partly unfit to live in, other than because of a breach of the agreement (s 94(1)(a)) or on the amenity or standard of the premises having decreased substantially: s 94(2)(b).  The tenancy agreement contained a covenant to maintain and repair the premises, so the matters the appellant was complaining of could not come within s 94(1)(a).^[28]  In any case, all the house remained liveable.  Whether the amenity or standard of the premises decreased substantially is a matter of judgment, where the decision at first instance will not readily be upset unless the basis for the judgment is shown to be in error.^[29]  Even then, whether to make an order  is a matter of discretion,^[30] and I note that in Gould v Mazheiko [2020] QCATA 10 Daubney J, the then President of the Tribunal, said at [23] that in that case a rent reduction would not have been just where the tenant had been aware of the relevant issues for more than six months before the application, and of some of them since the beginning of the tenancy.^[31]  As well, even on the appellant’s material at first instance, it is difficult to say that the amenity or standard of the premises had decreased substantially. 
25. [25]
    Another difficulty for the appellant is that it has been held that an application for relief under s 94 can only be made during the tenancy.^[32] In Define Property Agents v Sanderson [2021] QCATA 129 I held that it followed, from the decisions that applications under s 94 could only be made during the tenancy, that an order for reduction of rent under s 94 could not be made to have operation retrospective from the date the application was made to the Tribunal.  Under the Act s 417, this is taken to be the day on which the dispute was referred to the Residential Tenancy Authority (“RTA”) for conciliation: [26].  There was no power under s 94 to reduce the rent as from the beginning of the tenancy, and at best for the appellant the rent could have been reduced only from when the request was made to the RTA. From the copy of the request, and from a letter from the RTA on the file, that was on 16 August 2022.  The appellant moved out within the next month.  
26. [26]
    The request for conciliation sent to the RTA dated 16 August 2022 said that the dispute was about repairs.  It referred to a notice to remedy breach issued on “17 August 2022”, for “unremedied breach”.  The Notice to remedy breach in Form 11, a copy of which is also on the file, was dated 11 August 2022, and sought to have fixed “fencing, front driveway, front gate and two windows”, although it also sought to have a builder look at the house “asap”.  The Act s 416 provides relevantly as follows:

1. The … tenant under a residential tenancy agreement … may apply under this Act to a tribunal about an issue only if the applicant has first made a dispute resolution request about the issue, and [the conciliation process ends or any agreement reached is breached].

27. [27]
    The section provides that it does not apply to an urgent application, which is defined in the Act s 415 as an application for termination, an application to restrain a person from causing damage or injury, an application under any one of a list of specific sections, or an application under the Act Chapter 9, which is concerned with tenancy databases.  The list of sections under which an urgent application may be made does not include s 94, although it does include s 191 and s 221, discussed earlier. 
28. [28]
    The significant feature of s 416(1) is the words “about an issue” and “about the issue.”  For a non-urgent matter, there has to be a dispute resolution request “about the issue” before an application can be made to the Tribunal “about an issue”.  It is not sufficient for there to have been a request about something, it has to be “about the issue”.  Compliance with s 416 has been held to be a requirement for jurisdiction of the Tribunal, so the Tribunal has no jurisdiction to deal with “an issue” unless it was the subject of a dispute resolution request to the RTA.  The form for a request, Form 16, is not very helpful in this regard; it provides a choice of six boxes to tick, then a seventh box where some other issue can be written in.  In this case, the appellant ticked the box “repairs”. 
29. [29]
    The form also stated, in response to a question about notices, that a notice to remedy breach had been issued, because of “unremedied breach”.  If it is permissible to look also at that form, as mentioned above, the matters identified in it were referring to getting what were said to be breaches of the lessor’s obligations remedied.  In the appellant’s material before the Tribunal, here is an email she sent the respondent on 26 July 2022, complaining about the failures to repair listed later in the notice to remedy breach, and saying she had four options:

1. We can issue you with a Form 11 notice to remedy breach.
2. We are entitled to claim compo for the inconvenience we have had and are going to have.
3. We can issue you with a Form 16 Dispute Resolution Request, OR
4. We can take this to QCAT.

30. [30]
    Again, there is nothing here specifically referring to an application to reduce the rent, although that could be argued to be a form of obtaining the “compo” referred to in point 2.^[33]  It does not appear that whether a claim to reduce the rent was an “issue” referred to the RTA by the appellant’s dispute resolution request was considered by the Member, but because this is a matter going to the jurisdiction of the Tribunal, it would be open for it to be raised on appeal, and indeed it is always the duty of the Tribunal to ensure that it has jurisdiction to deal with a matter brought before it.^[34]  The parties have also not had the opportunity to address this question, and I could not decide it without hearing from them.  In the circumstances, because of the other difficulties facing any claim for relief under s 94, I will not give leave to appeal in relation to the claim for rent reduction under the Act s 94.  It becomes unnecessary therefore to reach any conclusion about this question of jurisdiction. 

Consideration  -  Damages for breach

31. [31]
    It has been said that the only way the Tribunal can order compensation for lack of amenity under the Act is under s 94 or under s 419.^[35]  Since that decision a power to order compensation has been inserted by amendment in s 221A(4), but as I read the section, subsection (4) provides examples of ancillary orders which the Tribunal can make under subsection (3) “In granting the repair order”, and cannot be made unless a repair order is granted.  Once the appellant moved out of the premises, there was no reason to grant a repair order in her favour, since she no longer had any interest in repairs being carried out.  By the time of the hearing therefore there was no longer the possibility of making a compensation order under s 221A. 
32. [32]
    Turning then to s 419, this provides relevantly as follows:

1. This section applies if any of the following claim there has been a breach of a term of a residential tenancy agreement . . . . —

1. a … tenant under the residential tenancy agreement;

. . .

2. The …  tenant … may apply to a tribunal for an order about the breach.

3. The application must be made within 6 months after the … tenant … becomes aware of the breach.

4. For a residential tenancy, the application may be made—

1. during the term, or after the end, of the agreement; and

2. whether or not an application for termination, or a termination order, has been made about the agreement; and

3. whether or not a rental bond for the agreement is held by the authority when the application is made.

33. [33]
    The reference to a term in the agreement would include any duty imposed on a lessor under the Act: s 52.  In this way, such an obligation becomes a term in the agreement, including the obligation in s 185(2).  The significant limitation provided in this section is that in subsection (3), that the application must be made within six months of when the tenant becomes aware of the breach.  Because of the Act s 417(2), this six months limit applies by reference to when the request for conciliation is made to the RTA, in this case, 16 August 2022.  Again, this has been said to be a requirement for the jurisdiction of the Tribunal to deal with the matter.^[36]  The practical effect of this provision is that the Tribunal was unable to give compensation for any breach of the agreement of which the appellant was aware prior to 15 February 2022. 
34. [34]
    In this context, it is necessary to distinguish between a continuing breach, and a series of independent breaches.  For example, if a tenant fails to make a series of rent payments, each failure is a specific breach, and only such failures as occurred within the last six months can found a claim for unpaid rent under s 419.  On the other hand, if an obligation to repair arises, and the lessor breaches the agreement by failing to repair after becoming aware of the need for the repair, that is a continuing breach until the repair is effected.  What matters for the purposes of s 419(3) is when the tenant first became aware of the breach, that is, first became aware of the failure of the lessor to effect repairs the lessor knew about.  If that is outside the six month period, no compensation is recoverable in relation to failing to repair that particular item.^[37] 
35. [35]
    This matter was addressed at times by the Member, who found that at least some of the breaches alleged and relied on were matters where the appellant was aware of the breach well before 15 February 2022.  A breach can occur in two ways, essentially matching the difference between the lessor’s obligation under s 185(2) and s 185(3).  In the former case, for a failure to have the premises in the required state at the beginning of the tenancy, that breach occurs at that time, and the six months period runs from when the tenant becomes aware of the problem.^[38]  On the other hand, if a problem arises during the tenancy, the lessor cannot be in breach of the duty to repair and maintain in the Act and in the agreement until the lessor (or the lessor’s agent) is aware of the problem, and does not deal with it within a reasonable time.^[39]  The relevant point in time is not when the appellant was aware of the problem, but when the lessor has failed to repair, within a reasonable time after the lessor was aware of it, a defect arising during the tenancy. 
36. [36]
    For matters rendering the premises unfit to live in or not in good repair at the state of the tenancy, the relevant breach occurred at the start of the tenancy, and any such deficiency of which the tenant was aware before 15 February 2022 would be excluded by this time limit.  That would appear to cover most matters complained of by the appellant; so far as anything was revealed for the first time by floods in February 2022, it would have been helpful to know more about the timing of that knowledge.  
37. [37]
    It is difficult now for me to be able to say just what part of the appellant’s claim was within the jurisdiction of the Tribunal under s 419, although it appears correct to say that most of the appellant’s complaints were about matters arising outside the six months limit.  Perhaps the Member approached the issue about the flooding on the basis that, in circumstances where damages had not been proved, it was not necessary to do so.  There is some sense in that approach.  Even if the driveway, which was unsealed, ran through some areas which were sufficiently low-lying to be covered in water in February 2022, and perhaps in other periods of unusual rainfall, the pathway when dry looks quite usable in the photographs in evidence, and there was evidence that even during the floods it was not impassable, to support the Member’s finding. 
38. [38]
    The finding that there was no compensable damage proved is, as a finding of fact, difficult to challenge on appeal.  Leave to appeal in a minor civil dispute to challenge findings of fact is not readily given.  It may be that, strictly speaking, the appellant was entitled to nominal damages for breach of the agreement even if no real loss was proved, but failing to receive an award of nominal damages does not amount to a substantial injustice to the appellant.  Overall, no good reason has been shown in this matter to grant leave to appeal from the decision of the Member on 2 November 2022, and the application for such leave is dismissed.  The appellant is therefore not entitled to recover the amount of the filing fee, and there will be no order as to costs.